Circuit City 2005 Annual Report Download - page 148

number includes the plural. The word “person” includes, in addition to any natural person, a corporation, partnership,
limited liability company, firm, trust, association, governmental body or other entity. The captions of the sections of
this Agreement are for convenience and reference only, and the words contained therein shall in no way be held to
explain, modify, or aid in the interpretation, construction or meaning of the provisions of this Agreement.
11.12 Attorneys’ Fees. If either party brings any action, suit, or proceeding against the other arising from this
Agreement, or is made a party to any action or proceeding brought by Escrow Holder, then as between Buyer and
Seller, the prevailing party shall be entitled to recover as an element of its costs of suit, and not as damages, reasonable
and actual attorneys’ and experts’ fees and litigation expenses to be fixed by the court.
11.13 Survival. The indemnities contained in Section 11.16.6, 11.17 and 11.22 below, the covenant contained in
Section 4 of the Assignment Agreement, all warranties or covenants (express or implied) contained in the Deed, and the
covenants and agreements contained in Sections 11.4, 11.12, 11.17 and 11.19 of this Agreement shall survive the
Closing and delivery and recordation of the Deed and shall not be merged into the Deed. In addition, the
representations and warranties of Seller set forth in Section 10.2 above shall survive the Closing and delivery and
recordation of the Deed and shall not be merged into the Deed, subject to the terms contained in the last paragraph of
Section 10.2 above.
11.14 Termination; Notice of Default . If this Agreement terminates prior to the Closing pursuant to any provision
hereof allowing for termination (whether or not such provision references this Section 11.14), this Agreement shall be
of no further force or effect except that: (i) Seller shall promptly cause the Earnest Money to be returned to Buyer; (ii)
the Escrow shall be cancelled; and (iii) Buyer and Seller shall each pay one-half (1/2) of any escrow cancellation fees
charged by Escrow Holder. Nothing contained herein shall be deemed to limit or impair: (a) Seller’s right to liquidated
damages for Buyer’s default as provided in Section 2.1.2 above or for damages pursuant to the indemnity contained in
Section 5 above, or (b) any other indemnity or repair obligations of Buyer under this Agreement. If Seller defaults in its
obligation to sell and convey the Property to Buyer as and when required under the terms of this Agreement (“Seller’s
Default”),
then Buyer, as its sole remedy hereunder for such default, may either (i) terminate this Agreement by written
notice to Seller, in which event Buyer will receive from the Escrow Holder the Earnest Money, whereupon Seller and
Buyer will have no further rights or obligations under this Agreement, except with respect to those provisions of this
Agreement which are expressly stated to survive any termination of this Agreement, or (ii) seek specific performance
from Seller, but Buyer shall have no cause of action or claim for damages against Seller by reason of such default
(provided, however, that the foregoing shall not be deemed to limit or preclude any claim by Buyer against Seller based
on an indemnification provision expressly set forth in this Agreement). Notwithstanding anything to the contrary in this
Agreement, in the event Buyer elects to seek specific performance as a result of such default by Seller under this
Agreement, (a) the Purchase Price reduction set forth in Section 3.2 above shall continue until the date the Property is
actually conveyed to Buyer pursuant to such specific performance action, and (b) the Earnest Money shall be applied to
the Purchase Price at the time of such conveyance. As a condition precedent to Buyer exercising any right it may have
to bring an action for specific performance, Buyer must commence such an action within ninety (90) days after the date
it notifies Seller in writing of Seller’s Default. Buyer agrees that its failure to timely commence such an action for
specific performance within such 90-day period shall be deemed a waiver by it of its right to commence an action for
specific performance. The foregoing remedies of Buyer set forth in clauses (i) and (ii) above are mutually exclusive and
only one of such remedies (whichever Buyer elects) may be exercised. Neither party shall be deemed to be in default
with respect to this Agreement or to have breached this Agreement unless and until the other party shall have delivered
written notice to the other setting forth the nature of the alleged default or breach.
11.15 Construction
. The parties hereto agree that each party and its counsel or advisor have reviewed and revised this
Agreement and that any rule of construction to the effect that ambiguities are to be resolved against the drafting party
shall not apply in the interpretation of this Agreement or any amendments or exhibits hereto.
11.16 Operation of the Property
. During the Interim Period, Seller shall manage, operate, maintain, repair, and insure
the Real Property and the Personal Property in the ordinary course of Seller’s business and keep the Real Property and
the Personal Property in good repair and working order, and continue all routine maintenance and preventative
maintenance services on their normal service intervals as determined by Seller. Further, during the Interim Period:
11.16.1 Seller shall not (a) enter into any lease or other occupancy agreement affecting the Property or any part
thereof, (b) remove any tangible personal property from the Property except for the Removable Property or any article